Extending Sick Pay Not A Reasonable Adjustment

The case of Ashton v Royal Bank of Scotland (RBS) has confirmed that the obligation to make reasonable adjustments to those with a disability does not extend to increasing the amount of sick pay an employee gets.

Ms Ashton had frequent absences caused by her disability, and RBS made several adjustments to her working pattern and role allowing her employment to continue. However, RBS did enforce its absence policy by giving Ms Ashton a formal disciplinary warning once her absences reached a certain level, which consequently affected her sick pay.

Ms Ashton claimed that by issuing the formal warning and withholding her sick pay, RBS had failed to make reasonable adjustments. However, the Employment Appeal Tribunal found that she was not at a substantial disadvantage in comparison to those who were not disabled because all employees were treated consistently in accordance with the absence policy, and confirmed that extra sick pay would only need to be paid in exceptional circumstances. In RBS’s favour was fact that the policy was sometimes relaxed for those with disabilities.

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Too fat to drive?

A bus company in Lancashire has suspended two drivers because of their weight. They have been ordered to lose 7lbs in a month and then new targets will be set. The company claims the decision is justified on the grounds of health and safety but it has been criticised by some local politicians who point out that driving a bus is a sedentary role.

Anticipated surge in discrimination claims

With The Equality Act coming into effect as of 1st October collating and replacing most existing discrimination legislation, the Act is likely to result in a surge of tribunal claims in the next few months. With the increase in protected characteristics from six to nine plus the introduction of protection from perceptive and associative discrimination it seems likely that employers are increasingly likely to be faced with a tribunal claim.

This is particularly worrying because the Tribunal Service has already reported a sharp increase in the number of claims placed, even before the introduction of the Act.

It is more important than ever to ensure policies covering equal opportunities and discrimination are up to date and to provide adequate training to managers on how to recognise and deal with potential issues before the escalate.

Richard Prentis, employment law consultant at Empire HR has been advising clients to be more alert than ever to the risk of a claim "The Equality Act obviously exposes employers to a greater risk of a claim because more people than ever will be protected by discrimination legislation. However, it is possibly to mitigate risks. Provided expert advice is sought, you should be well placed to defend such a claim".

Empire HR can provide support and assistance with managing employees who are protected by the Act. In the event that an employee does place a claim, the Empire HR Advocacy Unit can defend the claim and provide representation at tribunal.

Proposal to Increase Unfair Dismissal Qualifying Period to two years

At the moment the Government is actively considering an increase in the qualifying period for unfair dismissal from one year to two years.

The timetable for decision is yet to be announced and it is very likely that there will be a consultation period (about this and other employment law issues) first.


If the change in the qualifying period occurs, it will be moderately good news for employers but bad news for employees. In theory this would mean that employers would have an extra year to dismiss an employee unreasonably. But the employer could still face allegations of discrimenation or unfair dismissal claims where no qualifying period is required. This would include things such as whistle blowing and certain health & safety, maternity and trade union related dismissals. With these claims tending to be more expensive to defend than 'ordinary' unfair dismissal claims, it is unclear whether employers will find this proposal an entirely favourable change.

Health Questionnaires

Due to the large amounts of phone calls this month relating the health questionnaires we have decided to provide some information on the topic.

The Equality Bill generally prohibits the use of pre-employment questionnaires, although there are some exceptions. These are set out in Section 60(6) of the Bill. Amongst the 5 exceptions is:

S(60)(6)(b) establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.

This exception is the one that is likely to have most relevance for employers but it is a narrow exception.

Therefore, I would only advise the use of a pre employment questionnaire intended to fall within this exception where:

1) There is a genuine requirement for the employee to carry out a task of a physical nature.

It would not normally be appropriate to use a questionnaire where the work is office based, or where there are no tasks that are particularly physical. The first stage in considering the use of the questionnaire is to establish what the requirement is (e.g. heavy lifting, running, 20/20 eyesight etc). There should be some evidence that this requirement is genuine, and not simply a speculative requirement.

2)That task requiring the physical work is essential to carry out the job.

If the task resulting in the requirement is not essential, or it could be assigned to a different employee, or is not required to be carried out very often, it would not normally be appropriate to use the questionnaire. For example, even if there is some physically demanding work involved, I would advise carefully considering whether the use of a questionnaire is appropriate if it is possible that they could do most of the job without carrying out the physical work. Therefore, after you have established what the requirement is, you need to consider how important it is that the applicant can fulfill it.

3) The requirement is a proportionate means of achieving the aim.

This means that it is important to carefully consider whether the requirement is the best way to achieve the task. For example, if you are stipulating that the applicant must have 20/20 vision due to the work being technical and intricate you would need to be sure that the requirement for 20/20 vision was proportionate - consider the consequences of an employee without perfect vision carrying out the task – if there would be no serious consequences the requirement for 20/20 vision is not likely to be a proportionate requirement.

4) The questions are designed to ascertain whether there may be a problem in carrying out the particular task.

Therefore, it would not be appropriate to ask questions that will not relate to the particular task in question. For example, it would not be advisable to ask a question about skin problems such as eczema if the task that the questionnaire related to is heavy lifting. This means that it would not normally be appropriate to have a standard format for the questionnaire asking a series of general questions. The questions should be relevant to the specific task necessitating a particular requirement that you have established as being a genuine requirement that is essential to carry out the job.

It is worth noting that any questions should be designed to ascertain current ability to carry out the task. Therefore, questions asking about past health issues are likely to fall foul of the Act. I would recommend steering clear of questions starting with ‘have you ever …..’ and replacing them with ‘do you …’

As a very simple example, the Act’s explanatory notes state that a questionnaire may be relevant where "An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."

When considering whether to use a pre-employment questionnaire it is worth bearing in mind that while asking an applicant health questions will not in itself amount to discrimination against a job applicant, acting on the answers may well do. Where an unsuccessful job applicant brings a direct disability discrimination claim, and the employer asked a pre employment health question for a non-prescribed reason, the burden of proof will shift automatically to the employer to show that no discrimination took place.

In addition, the EHRC will be able to take enforcement action in relation to prohibited questions even where no discrimination is alleged to have taken place.

This prohibition only relates to pre-employment questionnaires. Once an applicant has been offered a job, an employer can ask questions relating to health in order to ensure health & safety obligations are being met, that appropriate reasonable adjustments are met etc.

If you find that you still require more information or guidance on this matter please contact our advice helpline on 01224 701383.

Equality Act Reminder

The Equality Act 2010 came into effect at the beginning of this month.

The Act collates and changes several areas of discrimination legislation covering race, sex, disability, sexual orientation, religion or belief, or age. The Act adopts a more consistent approach to discrimination – resulting in several key changes.

Some key changes that have come into effect as of 1st October 2010 are:

• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers
• Clearer protection for breastfeeding mothers
• Introducing a new concept of “discrimination arising from disability”
• Extending protection from 3rd party harassment to all protected characteristics
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health
• Making pay secrecy clauses unenforceable
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce
• Harmonising provisions allowing voluntary positive action

This list is not exhaustive but it does cover the area’s most likely to affect Empire HR clients. The Empire HR Bulletin has already addressed some of these changes. The July Bulletin explained how the Equality Act affects disability discrimination and the April Bulletin outlined the impact upon medical questionnaires. This edition focuses on secrecy clauses (see below). Empire HR will be keeping clients up to date on the implementation of the Equality Act. Don’t forget to check the Empire HR Facebook page or the Empire Wire for the latest information!

Britain's Got Talent tribunal

A contestant on the show has failed in her attempt to place a claim at a tribunal. The contestant alleged that she was discriminated on the grounds of her disability, leading to Simon Cowell criticising her performance and a decision not to put her through to the next round. Her claim was rejected on the grounds that Simon Cowell was not (and never would have been) her employer.

When work and religion clash

A Muslim bus driver sparked anger and outrage recently when he stopped his passenger bus so he could pray.  The driver pulled over, placed a jacket on the floor, removed his shoes and knelt down to pray for five minutes.

The bus passengers were bemused and angry, with some apparently terrified that the bus was about to be blown up.

Following the incident, the driver didn’t face any disciplinary action, although Transport for London has issued an apology and spoken to the driver concerned.

But how much are employers expected to accommodate religious practices? 

Well, practicing Muslims are expected to pray five times a day and this can take up to 15 minutes.  Many Muslim’s will not require any special measures to be taken at work and more devout followers can often pray in an office or spare room during their break times.

Legislation prevents discrimination in the workplace for religious or philosophical belief and employers should bear in mind that this doesn’t just apply to traditional religions.  A recent case found that a strong belief in climate change was capable of being a belief for the purposes of discrimination legislation. 

In general, preventing an employee from taking time out so they can pray will constitute indirect discrimination. However, there is an exception to this if the employer can demonstrate that it’s objectively justified.

The problem in the bus driver’s case arose because he chose to stop and pray despite being in the middle of a bus route, causing disruption to traffic and the passengers on board. 

Transport for London clearly has a diverse workforce, and has taken steps to accommodate the requirements of its religious employees.  Some of its depots contain prayer rooms, and employees are able to pray between journeys.  The key issue here is whether Transport for London would be at risk of a claim if it had taken disciplinary action and dismissed the employee. 

A tribunal would consider all the circumstances surrounding the event.  It’s possible that a tribunal would find that the need to get passengers from A to B, without causing major disruption to London traffic, would be an objective justification to them preventing drivers from praying mid-route.  A tribunal would also consider if a five minute prayer break would impact upon the service, how often the employee needed to pray, and whether steps had been taken to accommodate his requirements.

However, Transport for London would still need to follow the correct disciplinary procedure – which must be fair and consistent.

Those who regularly travel in London will probably have experienced similar hold ups.  It has been known for drivers to stop mid route for cigarette breaks, toilet breaks, to go to the shops.  On one occasion, a bus driver even took a quick detour, taking his bus and passengers to his home.  Unless Transport for London had taken disciplinary action in each of these cases, it would have been extremely risky to take action because a driver stopped to pray.

For employers, it can be very difficult to balance the needs of religious employees with the needs of the business.

Should this driver have been sacked?  Has the incident been blown out of proportion because the driver was Muslim, or because of the perceived terrorism threat?  Or was the driver given special treatment just because he was a Muslim?

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